#### J. W. POTTER v. NORWOOD LUMBER COMPANY.

(Filed 20 December, 1919.)

1. Railroads — Lumber Roads — Fires—Negligence—Defective Locomotives —Sparks—Foul Right of Way — Evidence.

Where the defendant’s railway locomotive directly set fire to the plaintiff’s lumber along its roadbed because of sparks from a defective spark arrester therein, or where sparks from its engine fell upon its foul right of way and set fire to the lumber, it is evidence of defendant’s actionable negligence; and it is competent to show that the engine at the same place emitted many sparks immediately before and after the fire upon the question of defects therein.

2. Railroads— Lumber Roads— Fires— Insurance— Evidence— Rebuttal Evidence.

Where the plaintiff has had his lumber insured and seeks to recover damages against the defendant lumber company for negligently setting it afire, and defendant has introduced evidence tending to show that at the place the plaintiff was seen raking up trash immediately before the fire, under suspicious circumstances indicating an attempt to burn the lumber, it is competent for the plaintiff either to explain or deny the inference that he was preparing to burn the lumber in order to obtain the insurance money.

3. Railroads — Lumber Roads — Fires—Lisurance—Parties—Partial Loss —Payment—Equity—Judgment—Estoppel.

Where plaintiff’s complaint demands damages for the negligent burning of his lumber by sparks from defendant’s locomotive, which lumber was partly covered by insurance, and the insurance company has been made a party plaintiff without objection, evidence that the insurance company has paid the loss covered by its policy is competent, and the insurer is equitably entitled to reimbursement. The defendant may not thereafter *138assign for error the making of the insurer a party, which will not he prejudicial to the defendant, when, by paying the judgment apportioning the recovery, the defendant will be fully protected.

4. Appeal and Error — Prejudicial Error — Damages—Fires—Evidence— Negligence.

In an action to recover damages for the alleged negligent burning of the plaintiff's lumber, evidence as to the price paid by plaintiff for the timber from which the lumber was manufactured is but slight, or negligible, proof of the latter’s value, and its exclusion is without substantial prejudice to the defendant’s right when taken in connection with the other testimony of the witnesses giving more definite and accurate information as to the value of the lumber.

Civil ACTION, tried before McElroy, J., and a jury, at Spring Term, 1919, of Swain.

Tbis was an action for the burning of plaintiff’s lumber yard, alleged to have been caused by the negligence of defendant, Norwood Lumber Company.

The plaintiff alleged, among other things, that he carried, at the date of the fire, an insurance policy for $2,000 with the Aetna Insurance Company, and upon proof of loss said amount had been paid by the company. The defendant denied this allegation. The insurance company filed a petition setting up the facts, and asked to be made a party, and be allowed to adopt the complaint filed by J. W- Potter. The judge granted the request, and the company was made a party plaintiff, and adopted the complaint already filed.

On the trial of the action it appeared that the lumber yard of the plaintiff was situated near the roadbed of the defendant, Norwood Lumber Company; that it had a switch at or near the lumber yard, and, on the day of the fire, one train came up to the switch at the lumber yard, and another one, drawn by what the witness termed the “Four Spot” (local name for an engine), came down the mountain, and the two engines turned around, and the “Four Spot” took the load that the other engine had and started back up the mountain; the other engine “drifted back” down the mountain, carrying the load of logs that had been brought down by the “Four Spot.” The “Four Spot” had only been gone a few minutes when fire was seen in the sticks, brush, and other rubbish on the right of way between the railroad and the lumber yard. The wind was blowing from the track of the railroad toward the lumber yard. The engine, as it went up the mountain threw sparks and set the woods afire in several places. The right of way of the railroad was foul, lumber strips and other trash had accumulated thereon, and had been allowed to remain. There was evidence that the “Four Spot” did not have a spark arrester, and evidence to the contrary.

Yerdict and judgment for the plaintiff, and defendant appealed.

*139 Felix E. Alley and Merrimon, Adams & Johnston for plaintiff.

■Thos. S. Rollins and 8. W. Blaclc for defendant.

Walker, J.,

after stating tbe facts as above: We will consider tbe assignments of error in tbe order they are stated in tbe record:

1. It was competent to prove tbat tbe engine emitted many sparks immediately before and after tbe burning, so as to sbow its defective condition, these sparks having fallen upon.tbe foul right of way and caused tbe fire. Knott v. R. R., 142 N. C., 238; Whitehurst v. R. R., 146 N. C., 588; Armfield v. R. R., 162 N. C., 24; Cheek v. Lumber Co., 134 N. C., 225; Williams v. R. R., 140 N. C., 623; Cox v. R. R., 149 N. C., 117; Currie v. R. R., 156 N. C., 419; Aman v. Lumber Co., 160 N. C., 370; Perry v. Mfg. Co., 176 N. C., 68, and Williams v. Camp Mfg. Co., 177 N. C., 512, and cases cited. It can make no difference, as tbe eases above sbow, whether tbe sparks came from a defective engine or dropped on a foul right of way, as either act of negligence was sufficient to carry tbe case to tbe jury. Knott v. R. R., supra.

2. There was testimony to tbe effect tbat Potter was seen raking up trash, as if to set it afire, just before tbe fire started, and, in order to refute tbe charge, it was certainly competent for him to deny or explain it, and to show tbat be was not trying to burn tbe property for tbe insurance. Tbe case of Lytton v. Marion Mfg. Co., 157 N. C., 331, where it was attempted to prove tbat tbe defendant was insured, has been called to our attention, but it does not change our view, as we have decided tbe case, with respect to tbe insurance, upon tbe ground tbat tbe defendant was charging plaintiff, impliedly, at least, with having burned tbe property to get tbe insurance, and plaintiff bad tbe right to reply to tbe accusation, and also to explain what was stated by one of tbe witnesses, tbat be was seen at tbe lumber piles and it appeared as if be was raking up trash as if to burn it, or words to tbat effect. Besides, there was no objection when tbe insurance company was made a party. It claimed a part of tbe fund, which has been allowed in tbe judgment. If it be conceded tbat tbe action must be brought in tbe name of tbe insured, when tbe insurance is less than tbe actual loss, it appears in this case tbat tbe amount of tbe policy has been paid by tbe company to tbe insured, and it is equitably entitled to reimbursement.

3. Tbe defendant cannot now be allowed to assign as error tbe order of tbe court making tbe insurance company a party, as it made no objection to it at tbe time tbe order was' made, and, besides, we cannot see bow it is prejudiced by tbe order, as it will be protected, if it pays tbe judgment for tbe damages recovered by tbe plaintiff, J. W. Potter. If tbe insurance company gets a part of tbe money, of what concern is tbat to tbe defendant? It makes no difference who gets tbe money if tbe *140defendant is fully discharged. Newsom v. Russell, 77 N. C., 277, where it was said by Justice Bynum: “What interest is it to the defendant if he is absolved from further liability by payment of his debt upon a judgment regularly obtained against him ?”

4. The evidence admitted as to the payment of the insurance did the defendant no harm for the reason just stated, and, also, because it was not denied that a policy had been issued, the defendant even charging that plaintiff had burned the property to get the insurance money. All this evidence, taken connectedly, was competent to rebut this serious imputation against the plaintiff. The insurance had been taken out by J. M. English & Company, without Potter having knowledge of it up to the time of the fire. The loss, if any, was payable to I. M. English & Company, and the evidence proved how much of the recovery should go to the insurance company, and this amount ($2,000) was directed in the judgment to be paid to the company. Powell v. Water Co., 171 N. C., 290.

5. The remaining exception is without merit. What Potter paid Stovall for the timber, not the lumber, was very slight proof of the latter’s value, if proof at all, and its exclusion worked no substantial harm to the defendant, especially in view of the fact that Stovall, the same witness to whom was put the question, as to the price of the timber, was examined, at length, as to the quantity and value of the lumber, and there was elicited far more definite and accurate information as to how much lumber was on the yard. The defendant was evidently not prejudiced by the court’s ruling. S. v. Stancill, at this term, 178 N. C., 683 (100 S. E., p. 241).

There is no error, and it will be so certified.

No error.